TMI Blog2011 (7) TMI 1303X X X X Extracts X X X X X X X X Extracts X X X X ..... pany Application No.393 of 2011 and is hereinafter referred to as the application, seeking below mentioned relief: (a) THAT the Applicant Transferee company being the Parent Company in the proposed amalgamation of United Phosphorus Limited, (Mauritius), a wholly owned subsidiary BioWin Corporation Limited, which in turn is wholly owned subsidiary of the Applicant Transferee Company with the Applicant Transferee Company and considering the submissions made vide para 17 of the Affidavit in support of the Judge's Summons, a meeting of the shareholders of the Applicant Transferee Company, for the purpose of considering and if thought fit approving with or without modification(s), the proposed Scheme of amalgamation of United Phosphorus Limited (Mauritius) with United Phosphorus Limited as required to be taken out under the provisions of Section 391(2) of the Companies Act, 1956; is not required to be convened. (b) AND THAT in the alternate, directions may be issued as to the method of convening, holding and conducting the meeting of the Equity Shareholders of the Applicant Transferee Company, for the purpose of considering and if thought fit approving with or without modifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsidered the submissions made in support of the application. 7. It appears from the record that the applicant transferee company was incorporated in January 1985 as a Limited Company in the name and style of Vishwanath Commercials Limited and subsequently w.e.f. 17.02.1994, the name of the company was changed to Search Chem Industries Limited and subsequently w.e.f. 15.10.2003, the name of the applicant company was again changed to its present name i.e. United Phosphorus Limited. It also emerges from the record of present application that the main objects of the applicant company, inter alia, are: (1) To carry on the business of dealers, importers, exporters, commission agents or otherwise of cotton, jute, cotton goods, jute goods, textiles, yarn, synthetic goods, fibrous materials, mill stores, coal, chemicals, paper, engineering goods and cast iron items and agricultural implements and other machinery. (2) To carry on business to manufacture, formulate, process, refine, finish, recover, extract, import, export, buy, sell, distribute or otherwise deal in red phosphorus, yellow or white phosphorus, phosphates, phosphites, phosphides, insecticides, pesticides, fungicides, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Company may not (a) raise capital by means of any offer to the public of any securities or units in the Company for subscription, sale or exchange; (b) carry on any banking, insurance, or a reinsurance business, nor any business of providing nominee or trusteeship services, nor the business of holding or managing collective investment fund as a professional functionary; (c) carry on business with persons resident in the Republic of Mauritius; (d) own an interest in immovable property situated in the Republic of Mauritius; (e) hold any share, debenture, security or any interest in any company incorporated under the Companies Act 1984, or any socitey or partnership under the Code Napoleon or the Code de Commerce, or in any body corporate or association formed or registered under an enactment in force in the Republic of Mauritius, other than in an Offshore Company; (f) have as beneficial owner of any of its shares or as a member, a person resident in the Republic of Mauritius; or (g) carry on the business of providing the registered office for companies. 7.2 It has been further submitted that under Clause 24(f) of the Listing Agreement, the proposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs as may be considered necessary and expedient in relation thereto (including the convening and conduct of General Meetings, as may be directed by the Court) and for that purpose to engage counsel; (e) To take necessary action in this regard and take all necessary steps as are required for the implementation of the Scheme in all respects whatsoever and for obtaining the requisite approvals and orders from the concerned authorities and the Court respectively; (f) Obtaining approval from such other authorities and parties, including the shareholders, term loan lenders and other financial institutions, as may be considered necessary, to the said Scheme; From the resolution dated 25th May 2011 (at Annexure-F) it also transpires that the Directors of the company in the meeting held on 25th May 2011 resolved that: 1. The amalgamation between the Company and UPL India be and is hereby approved. 2. Upon the consummation of the amalgamation, the assets of the Company shall be transferred to and vested in UPL India and shall become the assets, estates, rights, title and interest of UPL India, being the surviving entity. 3. The liabilities of the Company shall also be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eree company and when the scheme does not involve diminution of liability in respect of unpaid share capital and when the capital structure of the transferee company is not going to change then separate proceedings for or by the Transferee Company may not be indispensable and can be dispensed with if regular and prescribed procedure is duly followed or is going to be followed by the Transferor Company. In the case between Mastek Ltd. this Court in the decision dated 07.07.2011 (Company Application No.370 of 2011) observed that:- 9. In view of the provisions under the Scheme and details mentioned in the Judge's Summons, it emerges that the equity shares of the transferor company, which are indirectly held by the transferee company (or its nominee) stands automatically canceled and in lieu thereof no new shares are issued by the transferee company. Consequently, as noted above the capital structure of the transferee company is not going to change. Furthermore, having regard to the financial position of the transferee company, the rights of existing shareholders and creditors will not be affected adversely. Overall consideration of the aforesaid aspects, coupled with the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... United Phosphorus Limited (Mauritius) with United Phosphorus Limited as required to be taken out under the provisions of Section 391(2) of the Companies Act, 1967 is found to be dispensable and that therefore the same is permitted to be and is hereby dispensed with. However, the petitioner shall comply with below mentioned conditions that:- (a) the transferee parent company shall take out proceedings for the sanction of the Scheme, and for that purpose the petitioner transferee company shall issue and get published an advertisement in Times of India , Mumbai, Pune, Ahmedabad and Surat Editions as well as in Loksatta (Marathi), Mumbai, Pune and Nagpur Editions and Gujarat Samachar (Ahmedabad, Vadodara and Surat Editions) giving details of the scheme and inviting objections if any and giving details when and where the proceedings for sanctioning of the Scheme will be taken out. (b) The advertisement shall be published at least 21 days before the submission of Scheme for same time and the date on which the scheme is to be presented for sanction shall be clearly and in Bold Letters mentioned in the advertisement. (c) The petitioner shall forward copy of present order t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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